Tag Archives: ICC

Termination of the ICC case against H.E. President Uhuru Kenyatta is good for the country for a number of reasons that I have previously articulated as documented below in a series of articles published by the Star.

Now that this chapter of our history is closed, we can focus on the next one and that’s all of us pulling together to make sure there’s continued peace and progress in the country.

I recall just the other day having a conversation on an EK flight from Dubai to Nairobi with someone I met in Business Class who happens to know me very well and I know of him very well even though we had not previously met in person.[An earlier version of this blog stated this happened on a KQ flight from Entebbe to Nairobi but that’s an entirely different conversation with someone else to be the subject of another blog for another day but I have corrected this one for historical accuracy].

What impressed me most is he and his friends who were traveling together and I had a very engaging conversation but none of us cared to know what our tribe or political affiliation was even though by our physical outlook you can eliminate one belonging to this or that tribe (read: not African but Kenyan) but it’s how the conversation occurred and the new friendship that matters.

This can be replicated regardless of tribe or ethnicity or circumstances for that matter and that’s what we all as Kenyans should strive for and that’s being open minded and willing to accept and engage those we don’t readily know for it may turn out it’s someone like this friend had we proceeded without engaging each other, we would never have known we were on the same flight and literally neighbors across the aisle.

Interestingly, this gentleman who I met on the Emirates flight knows very well and is known very well by one of my most vicious haters on these Internets (GW Bush word, not mine)–something we didn’t even waste a second to discuss because it’s not worth it as serious businessmen like this gentleman and adults for that matter know only morons and otherwise not fully mentally grown adults would engage in that kind of vile hatred and attacks of others for no reason–not even political motivation should ever have one stoop that low in expression of the level of vicious hatred and name calling yours truly has been subjected to but nonetheless forgives the tormentors.

Now, if only we can all forgive and move our country forward that would be the greatest gift we can give our beloved country for the benefit of one and all, including those who will be there after we’re all long gone.

And now, a reminder of the reasons why dropping of the ICC cases against our president is good for the country follow the links or if unable google same:

Bring ICC Cases Back Home

The Truth About ICC Cases

Why Uhuru Should Skip ICC Trials

Pursuing ICC Cases Is Counter-Productive

ICC Not Solution To Poll Violence

Raila and Cord Should Support ICC Deferral

Justice For Poll Violence Lies In Kenya

Options Beyond Denial of ICC Deferral

ICC Termination Not Impunity

Why Kenya Is Determined To Stop ICC Cases

President Uhuru Kenyatta’s Case ICC Trial Can Now Begin

Why President Uhuru Kenyatta’s Case Won’t Stand

Termination is not vindication of those of us who have been maintaining this position from the very beginning of this [fill the blank what suits you], it’s an affirmation sometimes the right thing is hidden from others until it’s very transparent and no longer opaque.

In this week’s Star column Why President Uhuru’s ICC Case Won’t Stand, I remind everyone what I have been saying all along about these ICC cases, which has been very consistent notwithstanding accusations to the contrary that this is a recent conversion of yours truly ascribed to various motives or reasons that are all actually false.

Since arriving on the ground to this point, everyone I am running into has been asking the same questions several have fielded in my Inbox for several weeks as to why am I now “suddenly” supporting Uhuru and Jubilee but my answer has been very much the same as I have said in the past and that’s I call things the way I see them.

But everyone has their reasons thy ascribe to me nipende nisipende!

Indeed, I heard so many of these reasons, especially from those who are now calling me all manner of names–even to my face (albeit jokingly when you know they mean it), I decided to pen this column to remind people of how wrong they are.

Sometimes you just have to call a spade, a spade and this is what I have done with respect to this issue.

Someone defending me at some joint in one of the social gathering I happened to be in Nairobi a few days ago when the issue was rather loudly raised, said I have become a nationalist.

He interestingly said this hardly moments after he himself had accused me of being driven by some of the same fake reasons others were raising in low tones elsewhere within the vicinity–but nothing I hadn’t heard before.

I therefore wasn’t sure whether he was being sarcastic or real but I did say in response to him and everyone there within earsight I have always been a nationalist and anyone who follows my writings would readily attest to that if intellectually honest.
There couldn’t be a better time for all of us to be nationalists for once than this very period we’re in.

In my column this weekend President Uhuru Kenyatta’s Trial Can Now Begin I note how despite having not achieved what the President wanted, namely, deferring, altogether terminating the cases or referring them back home for a local solution, the outcome reached at the conclusion of these efforts have made it possible for the president to avail himself for trial as this can now be done via video conference as opposed to having him hauled to the Hague and be physically present for the trial, which doesn’t sit well with many, including this writer, given presidents are not ordinarily hauled to courts and we certainly don’t want ours to be the first one.

Excerpts:

After mounting a spirited campaign to defer the ICC cases for the second time that did not yield the outcome sought, it now appears President Uhuru Kenyatta would have to settle for being tried via video link, if the ICC so approves as it should and likely will, instead of him being physically present at trial in The Hague.

This is welcome relief for all sides mainly because it allows the trial to take place without subjecting the president to the humiliation and awkwardness of being the first sitting president to be physically hauled into an ICC courtroom to face criminal charges that many believe don’t belong there to begin with.

Uhuru would have no doubt peferred that the cases be deferred or terminated altogether but, everything considered, going forward with a trial under these terms is desirable for several other reasons.

…

There are those who are saying that Uhuru should nonetheless reject this compromise but that will be a huge mistake because in both local and international politics, overplaying one’s hand is always politically costly with a dear price to pay.

The compromise is good and for this, all the efforts in the second round of deferral diplomacy have, in the end, yielded not exactly the outcome the president wanted, but one everyone, including himself can live and work with knowing in all cases where give and take is necessary, nobody gets everything they want.

Most importantly, we have likely avoided a bullet headed our direction had the president not been accommodated as now has so let’s hope the trials now quietly conclude and we close this dark chapter of our history even as we open a new one full of promise, peace and prosperity.

Former President Mwai Kibaki flagged off the first shuttle diplomacy in early 2011 intended to have the Kenyan ICC cases deferred. These efforts were led by former Vice-President Kalonzo Musyoka, who failed to deliver as tasked.

Round two got underway a few months ago, this time flagged off by President Uhuru Kenyatta and headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat.

With her background, and in particular having worked at the UN Security Council as legal advisor, it was expected that a different outcome would yield to this second effort to obtain a deferral.

Unfortunately – or fortunately, depending on who’s talking, Amina’s efforts to secure a deferral, too, have failed albeit on a very interesting UNSC vote: seven members voted in the affirmative, while eight, including the US, abstained.

…

By abstaining, the US and other seven members of the Security Council who are also signatories of the Rome Statute, sent a clear message: We hear you Kenya; we sympathize with you but in balancing the needs of the post-election violence victims, we have to see you doing more before we can throw our weight behind your request, not necessarily for a deferral, but other ways to bring these cases to an end to everyone’s satisfaction in the name of national peace and reconciliation.

…

Meanwhile, the UK is pushing for a compromise to have the ICC amend its rules and make it possible for the President to appear via video. While allowing this is a win for the President, it may not be enough.

Put another way, even though this will be good for the President, it will not array the President’s concerns that appear to be at the core of this dogged determination to terminate or refer the cases back home for a local solution, and that’s a penchant for some to have the President nailed at the ICC simply for being Uhuru Kenyatta and for no other reason.

This is not an unfounded fear or concern for the former OTP himself, Luis Moreno Ocampo is on record as having said he wanted these Kenyan cases to be an example of how the ICC can bite, having failed to do so in the last 10 years of existence save for one or two major cases.

No one would want to be a guinea pig for a prosecutor bent on inflicting pain simply as an example for others. One can therefore understand why the President would go to all lengths to make sure that doesn’t happen.

In other words, ICC is no longer about finding justice for the victims as many wrongly assume and believe; rather the process is now about whether an ICC faced with prosecuting cases that don’t belong there to begin with can do so and render a verdict that can be deemed all around fair and just, everything considered.

It cannot and thus the reason it’s preferable to terminate or refer the cases back home for a local solution where at least some justice can be achieved for the victims as opposed to none at all at the ICC.

By abstaining, the US and other seven members of the Security Council who are also signatories of the Rome Statute, sent a clear message: We hear you Kenya; we sympathize with you but in balancing the needs of the post election violence victims, we have to see you doing more before we can throw our weight behind your request, not necessarily for a deferral, but other ways to bring these cases to an end to everyone’s satisfaction in the name of national peace and reconciliation. – See more at: http://www.the-star.co.ke/news/article-144763/why-kenya-determined-stop-icc-cases#sthash.XX9j8FHf.dpuf

Former President Mwai Kibaki flagged off the first shuttle diplomacy in early 2011 intended to have the Kenyan ICC cases deferred. These efforts were led by former Vice-President Kalonzo Musyoka, who failed to deliver as tasked.

Round two got underway a few months ago, this time flagged off by President Uhuru Kenyatta and headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat.

With her background, and in particular having worked at the UN Security Council as legal advisor, it was expected that a different outcome would yield to this second effort to obtain a deferral.

Unfortunately – or fortunately, depending on who’s talking, Amina’s efforts to secure a deferral, too, have failed albeit on a very interesting UNSC vote: seven members voted in the affirmative, while eight, including the US, abstained.

Former President Mwai Kibaki flagged off the first shuttle diplomacy in early 2011 intended to have the Kenyan ICC cases deferred. These efforts were led by former Vice-President Kalonzo Musyoka, who failed to deliver as tasked.

Round two got underway a few months ago, this time flagged off by President Uhuru Kenyatta and headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat.

With her background, and in particular having worked at the UN Security Council as legal advisor, it was expected that a different outcome would yield to this second effort to obtain a deferral.

Unfortunately – or fortunately, depending on who’s talking, Amina’s efforts to secure a deferral, too, have failed albeit on a very interesting UNSC vote: seven members voted in the affirmative, while eight, including the US, abstained.

Impunity is generally defined as an exemption from punishment or freedom from the injurious consequences of an action. Very few Kenyans knew or had heard about this word prior to the passage and promulgation of our new constitution.

Since promulgation, however, the word has become a household word and a weapon of choice for progressives. One’s position as to any issue and whether it’s accepted as progressive enough is couched in terms of whether in so doing one supports impunity or is against it.

That’s all well and good but as in many cases in life, it’s not always the case that the choice as to whether one’s position is for or against impunity cannot be that stark or clear.

Impunity is generally defined as an exemption from punishment or freedom from the injurious consequences of an action. Very few Kenyans knew or had heard about this word prior to the passage and promulgation of our new constitution.

Since promulgation, however, the word has become a household word and a weapon of choice for progressives. One’s position as to any issue and whether it’s accepted as progressive enough is couched in terms of whether in so doing one supports impunity or is against it.

That’s all well and good but as in many cases in life, it’s not always the case that the choice as to whether one’s position is for or against impunity cannot be that stark or clear.

Impunity is generally defined as an exemption from punishment or freedom from the injurious consequences of an action. Very few Kenyans knew or had heard about this word prior to the passage and promulgation of our new constitution.

Since promulgation, however, the word has become a household word and a weapon of choice for progressives. One’s position as to any issue and whether it’s accepted as progressive enough is couched in terms of whether in so doing one supports impunity or is against it.

That’s all well and good but as in many cases in life, it’s not always the case that the choice as to whether one’s position is for or against impunity cannot be that stark or clear.

…

Accordingly, it’s a big deal to have a president of any country hauled before the ICC other than in circumstances where a majority of the world would see it as justified.

There’s no justification for hauling Uhuru Kenyatta, a sitting president to stand trial for charges he is likely not to be convicted on. And even if he were, every indication is such a conviction could not survive an appeal therefore rendering the whole process a waste of time while at the same time belittling our sovereignty.

…

Put another way, had the situation been, hypothetically speaking, that Bensouda was handed an envelope containing Uhuru and Ruto’s names as suspects for having committed crimes against humanity after they were sworn in office, a prosecutor balancing the need to seek justice for the victims and the desire not to make things worse would have politely declined to prosecute the cases.

This is precisely what one can rightly assume would have happened had former president Mwai Kibaki’s name been in the envelope handed to Kofi Annan.

This balancing takes place all the time in countries that observe and respect the rule of law. But one can’t call it impunity because it’s a practice actually sanctioned under the law therefore it can’t be impunity.

On the other hand, a prosecutor doing the same balancing but merely wishes to make one an example as the OTP declared in this case would have proceeded to prosecute and try the cases knowing fully well there won’t be any convictions but plenty of an appearance of having fought a good fight for justice.

The latter happened and we can say the OTP can be given an “A” for effort but it’s now not worth risking plunging the country into further uncertainty and even turmoil to make a point that has already been made.

We can now take care of our own from here knowing the rest of the world is watching unlike before PEV.

Put another way, had the situation been, hypothetically speaking, that Bensouda was handed an envelope containing Uhuru and Ruto’s names as suspects for having committed crimes against humanity after they were sworn in office, a prosecutor balancing the need to seek justice for the victims and the desire not to make things worse would have politely declined to prosecute the cases.

This is precisely what one can rightly assume would have happened had former president Mwai Kibaki’s name been in the envelope handed to Kofi Annan.

This balancing takes place all the time in countries that observe and respect the rule of law. But one can’t call it impunity because it’s a practice actually sanctioned under the law therefore it can’t be impunity.

On the other hand, a prosecutor doing the same balancing but merely wishes to make one an example as the OTP declared in this case would have proceeded to prosecute and try the cases knowing fully well there won’t be any convictions but plenty of an appearance of having fought a good fight for justice.

The latter happened and we can say the OTP can be given an “A” for effort but it’s now not worth risking plunging the country into further uncertainty and even turmoil to make a point that has already been made.

We can now take care of our own from here knowing the rest of the world is watching unlike before PEV.

Former president Mwai Kibaki flagged off the first shuttle diplomacy in early 2011 intended to have the Kenyan ICC cases deferred.

These efforts were led by now former vice president Kalonzo Musyoka and as we know, the efforts failed.

That was Round I.

Round II got underway a few months ago this time flagged off by President Uhuru Kenyatta but headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat before assuming the portfolio unlike Kalonzo who mostly learned the intricacies of the trade on the job as minister for foreign affairs, save for a stint as a participant in the Sudan peace process.

With her background, and in particular Amina having worked at the UN Security Council as Legal Advisor, it was expected that a different outcome would yield to this second effort to obtain a deferral.

Unfortunately–or fortunately, depending on who’s talking, Amina’s efforts to secure a deferral, too, have not been successful on a very interesting UNSC vote: 7 members voted in the affirmative, 8, including the US, abstained.

I mention the US by name because if Kenya or any country seeking a deferral were to succeed, they must have the US on their side.

France and Britain will always follow the US lead and vote accordingly; Russia and China, the other two permanent members of the council with veto power will usually go along unless it’s something that directly or indirectly threatens their strategic and business interests.

The rest of the 15 member states of the UNSC will usually follow whichever country they have closer strategic ties with among the permanent members.

One needs the support of 9 members of the 15 UNSC members to have a resolution passed but only if no member with veto power votes no.

With the US having always taken a very hostile stance against anything favoring the Ocampo Six and and now Bensouda 3, it was inevitable even our fine and accomplished Amina could not pull this one to the win column but the potential was and still remains there; well some aspect of it as I noted in my Star column this week.

Why then, even against these odds, does Kenya continue to pursue the deferral and/or termination of these cases?

I have my theories and think I know to near certainty but let me keep those to myself for now as I hear what others have to say.

I will say by way of hinting it can’t be for naught neither is it an exercise in futility nor one being naively pursued.

In my column this weekend, I’ll address part of this question and provide a complete analysis in a future column.

In my Star column this weekend Options Beyond Denial of ICC Deferral, I postulate on what other options Kenya has if she were to spare having her president paraded and tried at the Hague and becoming the first ever sitting president and likely the last ever tried for charges it’s clear they’ll never be convicted.